John Hickenlooper, in his official capacity as Governor of the State of Colorado, and the State of Colorado, Petitioners
Freedom from Religion Foundation, Inc.; Mike Smith; David Habecker; Timothy G. Bailey; and Jeff Baysinger, Respondents
Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 10CA2559.
In this case, the supreme court determines whether Respondents Freedom from Religion Foundation and four of its Colorado members have standing to sue Governor John Hickenlooper in his official capacity for issuing annual honorary proclamations that recognize a " Colorado Day of Prayer." Contrary to the court of appeals, the supreme court holds that the use of public funds to cover the incidental overhead costs associated with issuing the honorary proclamations does not, by itself, constitute an injury sufficient to establish taxpayer standing. Furthermore, contrary to the trial court, the supreme court holds that the psychic harm endured by Respondents as a result of media coverage revealing the existence of the honorary proclamations does not, by itself, constitute an injury sufficient to establish individual standing. Accordingly, the supreme court reverses the judgment of the court of appeals and remands with instructions to return the case to the trial court for dismissal.
For Petitioners: John W. Suthers, Attorney General, Daniel D. Domenico, Solicitor General, Michael L. Francisco, Assistant Solicitor General, Matthew D. Grove, Assistant Attorney General, Denver, Colorado.
For Respondents: Inderwish & Bonifazi, P.C., Daniele W. Bonifazi, John H. Inderwish, Centennial, Colorado; Boardman & Clark LLP, Richard L. Bolton, Madison, Wisconsin.
For The National Day of Prayer Task Force and Colorado Elected Officials and Individuals, Amici Curiae: Alliance Defending Freedom, Michael J. Norton, Greenwood Village, Colorado.
For The American Humanist Association, Amicus Curiae: American Humanist Association, Monica Miller, Washington, DC; Azizpour Donnelly LLC, Katayoun A. Donnelly, Denver, Colorado.
For American Civil Liberties Union, American Civil Liberties Union of Colorado, and Americans United for Separation of Church and State, Amici Curiae: University of Denver Sturm College of Law, Alan K. Chen, Denver, Colorado; ACLU Foundation of Colorado, Mark Silverstein, Sara Rich, Denver, Colorado.
CHIEF JUSTICE RICE delivered the Opinion of the Court. JUSTICE HOOD dissents, and JUSTICE HOBBS joins in the dissent.
[¶1] We granted certiorari to determine whether Respondents Freedom from Religion Foundation (" the Foundation" ) and four of its Colorado members (" the Colorado members" ) have standing to sue Petitioner Governor John Hickenlooper (" the Governor" ) in his official capacity for issuing annual honorary proclamations that recognize a " Colorado Day of Prayer."  Contrary to the court of appeals, we hold that the use of public funds to cover the incidental overhead costs associated with issuing the honorary proclamations does not, by itself, constitute an injury sufficient to establish taxpayer standing. Furthermore, contrary to the trial court, we hold that the psychic harm endured by Respondents as a result of media coverage revealing the existence of the honorary proclamations does not, by itself, constitute an injury sufficient to establish individual standing. Accordingly, we reverse the judgment of the court of appeals, see Freedom from Religion Found. v. Hickenlooper, 2012 COA 81, ¶ 61, and remand to the court of appeals with instructions to return the case to the trial court for dismissal.
I. Facts and Procedural History
[¶2] In 1952, Congress passed a resolution establishing a " National Day of Prayer," which was later officially defined as the first Thursday of May, see 36 U.S.C.A. § 119 (1998). Today, most states recognize statewide days of prayer that coincide with the National Day of Prayer. Colorado's governor has issued annual honorary proclamations recognizing a Colorado Day of Prayer since 2004. These honorary proclamations have always been issued in response to requests from the National Day of Prayer Task Force (" the Task Force" ). In the past, a public event has been held on the steps of the Colorado Capitol to celebrate the Colorado Day of Prayer.
[¶3] Respondents, who self-identify as " nonbelievers," sued the Governor in his official capacity, alleging that his predecessors violated the Preference Clause in article II, section 4 of the Colorado Constitution by issuing annual Colorado Day of Prayer honorary proclamations from 2004 through 2009. According to Respondents, these government-issued honorary proclamations--which proclaimed a statewide day of prayer in Colorado and (until 2009) contained explicit biblical references--constituted an unconstitutional endorsement of religion that uniquely harmed Respondents by making them feel like political outsiders. Thus, Respondents asked the trial court to enjoin the Governor and his successors from issuing future Colorado Day of Prayer honorary proclamations and to declare the previously issued honorary proclamations unconstitutional. The Governor filed a Motion for Summary Judgment, and Respondents filed a Cross-Motion for Summary Judgment.
[¶4] In its Order on Summary Judgment, the trial court first addressed whether Respondents had standing as Colorado taxpayers to sue the Governor. Explaining that a plaintiff " must at least show some use of taxes generally" to establish taxpayer standing, the trial court concluded that Respondents did not have taxpayer standing because there was " no item in the State budget or any expenditure of tax monies relating to the issuance of the honorary proclamations." The trial court then considered whether Respondents had standing to sue as nonbelievers who were offended by the honorary proclamations as a result of Respondents' unavoidable exposure to extensive media coverage broadcasting the existence of the proclamations to Colorado citizens. Emphasizing that the honorary proclamations made Respondents " feel like political outsiders because they do not believe in the supposed power of prayer," the trial court found that Respondents had alleged an injury sufficient to establish individual standing. Nevertheless, the trial court ultimately concluded that the honorary proclamations did not violate the Preference Clause and granted summary judgment in favor of the Governor.
[¶5] Respondents appealed, and the Governor cross-appealed. The court of appeals affirmed the trial court's standing determination on different grounds, holding that Respondents had standing to sue the Governor as Colorado taxpayers. Conducting an independent review of the record, the court of appeals determined that public funds were used to cover the following expenses associated with issuing the Colorado Day of Prayer honorary proclamations:
o the cost of materials and supplies to create paper proclamations for the Task Force and for any person who thereafter requested a copy;
o postal expenses for mailing the proclamations to the Task Force and to any person who thereafter requested a copy;
o space on the computer server that is used to store electronic copies of the proclamations; and
o salaries for members of the Governor's office who, as part of their duties, received,
processed, created, and distributed the proclamations.
Freedom from Religion Found., ¶ 52. Although the court of appeals acknowledged that the exact amount of public funds at issue was " not clear," it nonetheless concluded that the Governor's use of any public funds to issue the honorary proclamations was sufficient to establish taxpayer standing. See id. at ¶ ¶ 56, 61. Reaching the merits of Respondents' substantive legal claim, the court of appeals reversed the trial court's Preference Clause determination and deemed the honorary proclamations unconstitutional. Id. at ¶ 142.
[¶6] The Governor appealed, and we granted certiorari review.
A. Standing in Colorado
[¶7] We review de novo the court of appeals' determination that Respondents have standing to sue the Governor. See Barber v. Ritter, 196 P.3d 238, 245 (Colo. 2008). Standing is a jurisdictional prerequisite that can be raised any time during the proceedings. See Ainscough v. Owens, 90 P.3d 851, 855 (Colo. 2004); Anson v. Trujillo, 56 P.3d 114, 117 (Colo. App. 2002). Because " standing involves a consideration of whether a plaintiff has asserted a legal basis on which a claim for relief can be predicated," Bd. of Cnty. Comm'rs v. Bowen/Edwards Assocs., 830 P.2d 1045, 1052 (Colo. 1992), the question of standing must be determined prior to a decision on the merits, see Ainscough, 90 P.3d at 855. If a court determines that standing does not exist, then it must dismiss the case. Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977).
[¶8] In Wimberly, this Court articulated a two-prong test for determining whether a plaintiff can establish standing to sue. See id. at 168, 570 P.2d at 539. This test has become the routine test for assessing standing in Colorado. Brotman v. E. Lake Creek Ranch, L.L.P., 31 P.3d 886, 890 (Colo. 2001) (" Because we have applied the Wimberly test in a variety of contexts, it has become our 'general' test for standing." ); see, e.g., Barber, 196 P.3d at 246-47 (applying the Wimberly test to determine whether the plaintiffs had taxpayer standing). To satisfy the Wimberly test, a plaintiff must establish that (1) he suffered an injury in fact, and (2) his injury was to a legally protected interest. See Wimberly, 194 Colo. at 168, 570 P.2d at 539.
[¶9] The first prong, the injury-in-fact requirement, maintains the separation of powers mandated by article III of the Colorado Constitution by preventing courts from invading legislative and executive spheres. Because judicial determination of an issue may result in disapproval of legislative or executive acts, this constitutional basis for standing ensures that judicial " determination may not be had at the suit of any and all members of the public." Wimberly, 194 Colo. at 167, 570 P.2d at 538 (quoting Ex-Cell-O Corp. v. City of Chicago, 115 F.2d 627, 629 (7th Cir. 1940)); see also Ainscough, 90 P.3d at 855-56; Conrad v. City & Cnty. of Denver, 656 P.2d 662, 668 (Colo. 1982). The injury-in-fact requirement also finds constitutional roots in article VI, section 1, under which Colorado courts limit their inquiries to the resolution of actual controversies. Bd. of Dirs., Metro Wastewater Reclamation Dist. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 105 P.3d 653, 655-56 (Colo. 2005); City of Greenwood Vill. v. Petitioners for the Proposed City of Centennial, 3 P.3d 427, 436-37 (Colo. 2000). In sum, the injury-in-fact requirement ensures that an actual controversy exists so that the matter is a proper one for judicial resolution. See Conrad, 656 P.2d at 668. The requirement ensures a " concrete adverseness" that sharpens the presentation of issues to the court. City of Greenwood Vill., 3 P.3d at 437. Thus, although both tangible injuries (e.g., physical damage) and intangible injuries (e.g., aesthetic deterioration of the environment) can satisfy the
injury-in-fact requirement, " an injury that is overly 'indirect and incidental' to the defendant's action" will not convey standing, nor will the remote possibility of a future injury. Ainscough, 90 P.3d at 856; see also Wimberly, 194 Colo. at 168, 570 P.2d at 539 (holding that the plaintiffs' " [i]ndirect and ...